Public Bill Committee

[John Bercow in the Chair]

Clause 18

Exclusion or expulsion from trade union for membership of political party

Jonathan Djanogly: I beg to move amendment No. 19, in clause 18, page 17, line 27, leave out other exceptional hardship and insert any material financial disadvantage.
We move on to the part of the Bill dealing with trade union membership. This is not the first time that I have spoken of my concerns about the clause, and I fear that it may not be the last. The clause embodies the conflict between two fundamental civil liberties: the freedom of association and an individuals right of political belief unhindered by arbitrary interference by public authorities. For that reason, we must ensure that the clause is debated to the fullest extent and that arguments both for and against are carefully examined.
The bar on trade unions excluding or expelling individuals from membership is set out in section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992 as introduced by section 14 of the Trade Union Reform and Employment Rights Act 1993. The section was subsequently amended in considerable detail by the Employment Relations Act 2004, and the changes made it clear that it was lawful for trade unions to exclude or expel individuals on the grounds of their political party activities. I was on the Committee that considered that legislation and recall the debate in which we went with the right for unions to end membership on grounds of conduct but not of belief. Despite the best efforts of this House and the other place when passing that legislation, the balance of the competing rights of the individual and of the trade unions was knocked somewhat out of kilter by the decision taken in Strasbourg by the European Court of Human Rights in ASLEF v. UK. Conservative Members accept that decision, although we do not like it.
For the sake of brevity and to save the Committee from a discussion on a judgment that many hon. Members will no doubt be well acquainted with, I will note only the barest bones of the details of the case. Mr. Lee, for 10 years a member of the British National party, applied for and was accepted into membership of ASLEF. Three months later, ASLEF received a report about Mr. Lee alleging not only that he had stood for the BNP in local authority elections but that he had been engaged in racist conduct. He was expelled by ASLEF and took his case to an employment tribunal, alleging breach of section 174 on the ground that he was expelled not for his conduct but for his membership of the BNP. The tribunal upheld his claim. However, ASLEF appealed to the European Court of Human Rights. The Courts assessment of section 174 led it to the conclusion that trade unions should be given greater scope to exclude or expel members on the basis of political party membership alone. In essence, the Court said that section 174 as it stands interferes with ASLEFs freedom of association under article 11 of the European convention on human rights. Under article 4 of the convention, an obligation is placed on the United Kingdom to comply with the judgment of the Strasbourg Court and adopt amending legislation, and that is what today is all about.
First, I want to express the Conservative partys deep unease with the decision in the ASLEF case. To our mind it marks a further erosion of personal civil liberties by an organisation with a remit that is meant to protect them. What a topsy-turvy world we live in when a court of human rights is reining in the freedoms of an individual to be a member of a recognised political party. Secondly, it seems that the Strasbourg decision was affected by the fact that the BNP members job was not put at risk by his union expulsion, which would be the case if, for instance, there had been a closed shop. It seems that there is yet room for this area of law to be developed further.
As the Committee will be aware, following the European Court of Human Rights decision, the Governments consultation paper of May 2007 suggested two options for the amendment of the existing legislation. Option A, which was initially used in the Bill when it was presented in another place, proposed a broad amendment to section 174 which would make it lawful for trade unions to expel or exclude on the basis that political party membership activities were unacceptable to them. That provided much greater autonomy to the trade unions in deciding their membership. The vast majority of the 33 consultation respondents were in favour of that option, but that may have had something to do with the fact that 26 of them were trade unions.
Option B, we thought, was the more constrained and sensible option, containing safeguards against abuse. It was proposed in the other place by the Liberal Democrats and received our support. The Government are to be commended for their eventual decision to go with that option.
The two options were discussed at some length in the other place, as were almost all aspects of the clause. I will not rerun those debates. However, I will draw out some key points that it is important to reiterate. We support the decision to use option B. To my mind, the likely consequences of option A on trade union autonomy are difficult to swallow. I fail to see how giving arbitrary powers to trade unions to bar membership would result in less litigation, as was originally suggested by the Government.
Any legal challenge under option A, which would undoubtedly arise given the BNPs tendency to grandstand in the courts on these issues, would be made a common-law breach of union rules and decided on the arbitrary nature of the rules. That could take us back 30 years to the days when trade union rules were seen as quasi-legislation that the court had to interpret, rather than as a contract between the union and its members.
We believe that the statutory safeguards in option B are far safer and more democratic because Parliament, rather than the courts, will set the parameters. With that in mind, we believe that option B is the correct method, or at least the best of the available choices. The provisions set out that trade unions should not exclude or expel members
otherwise than in accordance with the union rules
or by a decision that is unfair. Option B, as it appears in the Bill, will ensure a test of proportionality to some degree. Such measures are the yardstick for any decision about an individual. Openness and transparency of the criteria must be applied and there must be fairness in the application of the facts.
As I said, the Conservative party thinks that the clause requires further refinement if it is not to harbour the possibility of unfairness. I apologise for my somewhat lengthy introduction, but without putting them in context the amendments would not have made sense.
Amendment No. 19 has its roots in the ASLEF decision in the ECHR and the need to safeguard individual rights. The ECHR decision was that Mr. Lee had not suffered
any particular detriment, save loss of membership itself in the union.
Indeed, it went on to conclude that he lost nothing
in terms of his livelihood or in his conditions of employment.
While that was not the turning point of the case, it was a significant point raised by the Court. There is enough indication, however, that in other circumstances the Court may have been persuaded that there had been sufficient detriment to a claimant for a decision to go in his or her favour. Although the UK employment market is no longer blighted by the closed shop, this aspect of the decision opens a rich vein of opportunity for claims to be made by the BNP and others.
This important amendment was provided by the Liberal Democrats in the other place. Its aim is to ensure that appropriate statutory safeguards are put in place to prevent the abuse of the clause. Furthermore, such safeguards would prevent the courts from being unduly forced to prevent abuse by trade unions and deal with the corresponding litigation.
Under the amendment, a trade union would not be able to expel or exclude a person from membership if the result would be to inflict a material financial disadvantage on the individual. The Bill uses the term exceptional hardship, which while an improvement on the original concept of hardship alone, is too broad to act as a consistent measure of hardship. I share Lord Lesters concern that without a more clearly defined and qualified concept of hardship, the ambiguity of the term could lead to court cases. We need to spell out a clear and concise measure so that that cannot happen.
Therefore, with reference to proposed new subsection (4G)(c), I submit that a criterion of exceptional hardship, with all its associated problems, as the Government showed in the other place, is perhaps too opaque a phrase for the purpose. I instead propose material financial disadvantage as the safeguard to be included in the clause.

Michael Jabez Foster: Material hardship is such a low test. I cannot think of an example in which there would not be material hardship, material being a non-quantitative term, save that it exists. It is such a low test that, were it to be imposed, I cannot see a situation in which a union could ever expel. Will the hon. Gentleman give an example in which he thinks expulsion would arise?

Jonathan Djanogly: We believe that an assessment of that phrase is far easier than what is proposed. Financial hardship is a concept that we all recognise and I trust it can be judged on an objective basis. It allows the courts or trade unions to take into account the financial circumstances of the affected individual without undue difficulty.

Michael Jabez Foster: Will the hon. Gentleman give way again?

Jonathan Djanogly: No, because I am going to answer the question.
As regards what is material, the courts in this country have a long tradition of considering what is material in any case. Commercial contract disputes often pivot on what is to be considered material. Given that background, the familiarity of the courts and trade unions with these concepts and with case law, and the subsequent ease with which an assessment can be made on the facts, we think it better to replace exceptional hardship with material financial hardship.

Patrick McFadden: The hon. Gentleman talks about material financial hardship, but his amendment refers to material financial disadvantage, which is even milder than the point made by my hon. Friend.

Jonathan Djanogly: I think the hon. Member for Hastings and Rye was questioning the use of material. We believe that materiality as a concept is the key. That is why we have moved the amendment.

John Hemming: Before I go on to the substantive issue, I must reiterate a declaration of interest. Perhaps uniquely among Opposition Members, I had a vote in the Labour deputy leadership election. It is still stuck on the wall of my office, uncast. I had it because I happen to belong to a trade union that is affiliated to the Labour party. The clause, in a sense, has a direct relevance to me because I am not a Labour supporter, Labour voter or even a member of the Labour party; I am a member of another political party and I could be expelled from the Musicians Union for standing here as a Liberal Democrat Member of Parliament.

Michael Jabez Foster: On a point of order, Mr. Bercow. The hon. Gentleman has just declared something that may be unconstitutional. If he does not pay his political levy to the Labour party, he would not have a vote.

John Bercow: That is not a point of order. It may be considered to be a point of merriment, but that is not quite the same thing.

John Hemming: On the point of merriment, I have told the Labour party that I do not mind it having the £5 affiliation fee, as long as it stops selling peerages or accepting loans for peerages. In the interests of pluralism, I am quite happy for the £5 or so, which is paid by the trade union without my agreement, to continue to be paid to the Labour party.

Jonathan Djanogly: The hon. Gentleman has a right to opt out of that political contribution. He is not forced to pay money to the Labour party.

John Hemming: As long as it stops accepting loans for peerages, I am quite happy about that in the interests of pluralism. I even paid £1 to the Acocks Green Labour party to guess the weight of its cake. There is a photograph of me doing so.

Hugo Swire: On a point of order, Mr. Bercow.

John Bercow: I hope it is.

Hugo Swire: Indeed, Mr. Bercow, you may well rule me out of order. As a matter of interest, I was wondering whether, under Liberal Democrat party rules, it is possible financially to support another party while remaining a Liberal Democrat Member of Parliament.

John Bercow: The rules of political parties are absolutely not matters for points of order and they are certainly not an issue for the Chair as, I have a hunch, the experienced hon. Member for East Devon is well aware.

John Hemming: I am not sure that is a point to which I should respond as it is not necessarily in order.
The amendment mentions material financial disadvantage. It being an amendment proposed in the other House by my noble Friend Lord Lester, we obviously continue to support it here. Materiality is quite straightforward. There is a fee to be a member of a trade union. It does not all go to the Labour party. Therefore it is quite feasible to identify a material disadvantage where it exceeds the fee that would have been paid to the trade union had one been a member of it. That is quite a reasonable argument. Otherwise, we are pleased with the solution identified by Lord Lester.
Freedom of association is important, and not to be discounted when one has what are effectively voluntary associations. If there is no material financial disadvantage, that is a reasonable action to permit under the rules.

Nick Palmer: There is a genuine conflict over the issue of liberty, which was well summarised by the hon. Member for Huntingdon. We all accept that freedom of belief and association is important. It is not right, in general terms, to combat a legal political party by harassing its members. To take a parallel on the other side of the political spectrum, I was one of those who were concerned by the German Berufsverbot, by which members of the Communist party were systematically excluded from parts of public service. A trade union, however, is not an employer or an official body. Freedom of association allows us to choose with whom we associate. Therefore, the test needs to be whether the behaviour of an individual is such that it renders him unacceptable to members of a union or association, and whether such exclusion causes him severe hardship, as mentioned in the Governments proposal.
I listened carefully to the comrade from Birmingham, Yardley. The balance of interests is satisfied by the rules laid down in the Bill. I do not say that lightly; the issue is finely balanced. If we had a closed shop, the position would be different, because one would have to belong to a union to have a particular kind of employment. We would then see an indirect Berufsverbot, whereby a union would be able to prevent somebody from practising their profession because it objected to that persons legal political views. Therefore, it is important that proposed subsection (4G)(c) stays in the Bill so that if a closed shop were imposed again for a particular trade and for a particular reason, the law would not be totally static. We do not want an unintended consequence to arise from this law. With that safeguard in the Bill, even if I were to be a member of an extremeor a non-extremegroup that was excluded from a particular trade union, I would not feel that my ability to prosper and to pursue my profession was obstructed. The proposals are reasonable, and I congratulate the Minister on reaching this point in a difficult and hard-to-balance area.

Brian Binley: I apologise for arriving a little late, Mr. Bercow.
I hope that I am not out of order; I am sure that you will quickly point it out if I am. I am concerned about the phrase or having been, as it seems particularly unjust. I want to refer to a situation in my dim and distant youth, when I worked as chief clerk in the Co-operative bankwhen they had onein Wellingborough. I was a rather vociferous young Conservative, and vice-chairman of the association party of Young Conservatives. I had the opportunity to attempt to become a Conservative agent, and I succeeded. That is one of my proudest boasts. However, the general secretary of the Co-operative party allowed me to go for the initial interview and take the examination on the understanding that, if I failed, I would leave my Young Conservative work and not be a thorn in his side when some of my words appeared in the press.
I have had experience, therefore, of being a member of a political party and of that being used in certain ways which perhaps were not quite legal. I was a young man and my livelihood was important, and I accepted that agreement when I should not have done. However, if I went back to the Co-operative party organisation in Wellingborough today, could it say that, because I had been a member of the Young Conservatives in Wellingborough 40 years ago, I cannot have that job? I recognise that there are more detailed legal matters tied up in the issue, but I want some understanding of what having been means in terms of time. The suggestion that we limit and define having been is important in this respect. There are many previous members of the Labour party who have now got so sick and tired of it that they want to join the Conservative party.

John Bercow: Order. The hon. Gentlemans career history may well be illuminating and, indeed, of ongoing interest to members of the Committee. However the reference to having been, important though it is, is really relevant to a clause stand part debate. He made the point very clearly, and if he wants to develop it further in the clause stand part debate I hope that he will catch my eye and have the chance to do so.

Hugo Swire: I seek clarification on the clause. It says quite clearly:
the individual would lose his livelihood or suffer other exceptional hardship by reason of not being, or ceasing to be, a member of the union.
As the Committee is aware, our proposal is to replace other exceptional hardship by any material financial disadvantage. The Government have got themselves into a bit of a fix over this. They are meant to be the protectors of all employees, but here they are, sectioning out those who perhaps a union does not agree with, for political reasons, in a rather pernicious manner. I should have thought that, in this economic decline, masterminded over the past 10 years and now, hopefully, reaching its culmination under the iron Chancellor, that everybodys employment rights should be paramount. It is the heavy hand of a rather arrogant Government to suggest that, in legislation, they can decide what exceptional hardship, as opposed to material hardship, is.
I listened to the hon. Member for Hastings and Ryes questioning of what material hardship would be, suggesting that any material financial disadvantage could cover almost anything. Perhaps it can, but I suggest that a disadvantage is losing ones job, being unable to keep up ones mortgage repayments and the effect that that might have on family life. These are very serious issues and I find it quite extraordinary that the Opposition are seeking clarification on a matter which is more usually within the remit of a Labour party that purports to support employees.

Patrick McFadden: Let me put the amendment in context. The hon. Member for Huntingdon set out some of the background to the clause. It was the subject of more debate when the Bill passed through the other place than any other clause. We can understand why that is, because it deals with a very sensitive issue, which is the balance between the rights of freedom of association and of freedom to join a political party. That is obviously sensitive territory, and we must proceed with caution and care when legislating in that area.
The legislation is necessary because of the ECHR judgment in the ASLEF v. UK case. As we have heard, that involved ASLEFs attempts to expel a member of the BNPI will not repeat the background to the case that the hon. Gentleman has set out. The court, in weighing up the different rights involved, found that UK law as it stands is not compatible with article 11 of the European convention on human rights, concerning freedom of association. I hope that the need to legislate does not divide us. The Government believe that our law should be compatible with the convention. The question is how to legislate, which was at the heart of the debates on the clause in the other place.
Before introducing the Bill, the Government consulted on two options. The first was a deregulatory approach that would simplify the law and give unions broad powers on the matter. The second was a more specific approach, broadly along the lines of the current clause 18. The Government originally adopted the deregulatory approach, but that aroused fierce controversy in the other place across the political parties. We have heard that Lord Lester of Herne Hill was very vocal on the issue, as was Lord Morris of Handsworth, who spoke on the subject at Second and Third Reading. After a great deal of discussion, with those eminent peers in particularone of whom is one of the countrys most eminent human rights experts and the other is one of the countrys most eminent trade unionistsas well as consideration of the views of the Joint Committee on Human Rights, the Government agreed to amend the clause to create the current clause 18.
The current clause 18 does two things. It restores the provisions relating to protected conduct, meaning membership of a political party, which the previous clause would have repealed. It then sets out three safeguards for when a trade union proposes to expel or exclude someone on the basis of party membership. One of those safeguards relates to the subject of amendment No. 19. I shall concentrate on that rather than the other two.
Exclusion or expulsion should not result in
exceptional hardship by reason of not being, or ceasing to be, a member of the union.
In other words, the exceptional hardship must be directly related to not being a member of a union. That is set out at proposed new subsection (4G)(c) in clause 18. The phrase exceptional hardship has been the focus of the debate. We did not choose it at random; it was the phrase used in the ECHR judgment, paragraph 43 of which states:
Such abuse might occur, for example, where exclusion or expulsion from a trade union was not in accordance with union rules or where the rules were wholly unreasonable or arbitrary or where the consequences of exclusion or expulsion resulted in exceptional hardship.
It is the same phrase used by the Joint Committee on Human Rights when it considered the matter. Its report on how the clause should be amended said that
the exclusion or expulsion of the individual is permitted only if...the decision
is
taken in accordance with the unions rules and a fair procedure;...the unions rules are not wholly unreasonable; and...the consequences of exclusion or expulsion would not result in exceptional hardship.
The test we have set in the clause is therefore the same as the test quoted in the judgment by the ECHR and referred to in the report on that issue by the Joint Committee on Human Rights.
Reference has been made to loss of livelihood. Paragraph 50 of the judgment states that such a case would not result in exceptional hardship:
As there was no closed shop agreement for example, there was no apparent prejudice suffered by the applicant in terms of his livelihood or in his conditions of employment.
Not being a member of the union did not mean that the individual would lose his job, which could have been the case when a closed shop existed in this country, and that was referred to in the ECHR judgment.

John Baron: The Minister is approaching the issue in the delicate manner it deserves. While I accept what he says about the importance of there being no closed shop, does he not feel at least a tad uncomfortable with the legislation, because we are talking, despite all the qualifications, about a trade union being able to expel someone from membership purely on the grounds of what that person believes?

Patrick McFadden: As I said, this is a delicate area, and we have to tread carefully when we legislate on it. However, we are legislating in line with the ECHR judgement, which found that the absence of such a provision left us wanting in regard to article 11, and that was based on membership of a political party rather than on grounds of conduct, which had previously been in the rules.

Hugo Swire: Does the Minister personally believe that a union should have such power?

Patrick McFadden: I am happy to legislate on that basis because I think that our laws should be in line with the convention. When such powers are exercised, it is important that there are proper safeguards, and that is why we have put them in the Bill. I have concentrated on only one of them in this case, but there are three in total.

Stephen Crabb: If it were not for the European Court of Human Rights judgment, would the Minister have any interest in bringing forward this kind of legislation?

Patrick McFadden: We have the ECHR judgment, which has given rise to the legislation, and it gave us the test of exceptional hardship. The amendment mentions material financial disadvantage rather than material financial hardship, a point to which the hon. Member for Huntingdon referred several times. As my hon. Friend the Member for Hastings and Rye said, this is an altogether different testa much lower testthat could include many detriments associated with loss of union membership. For example, many unions provide a limited form of free or subsidised legal advice. Such legal assistance could of course be purchased by the individual, but he might end up having to pay more for it, which could result in a loss of some benefit because he is not a member of the trade union.

Hugo Swire: The Minister looks rather resigned when I make these points, but I am only trying to protect the workers. Were a member of a union to be expelled from that union for reasons of political membership, would that person still be a member until the judgment is against him or her? Therefore, would he or she be entitled to the unions protection for the legal fees in contesting the expulsion?

Patrick McFadden: That would depend on how the union rule book constructed its free legal advice. My point is that we have chosen the test for exceptional hardship carefully. We discussed it with Lord Lester of Herne Hill, and it is referred to in the ECHR judgment and the report from the Joint Committee on Human Rights. Were we to agree to the test proposed in the amendment, it is possible that any expelled or excluded BNP member would try to argue that the unions decision had disadvantaged them financially. In practical terms, that could make it almost impossible to use the provisions in the new clause.

Mary Creagh: My union, Unison, has a holiday home for its members in Croyde bay, Devon, which I highly recommend to anyone seeking to escape the worries of this place. Is not the amendment a wrecking amendment? As the Minister said, if it were accepted a BNP activist could cite not only the loss of legal and financial services but the inability to take a holiday at the Croyde bay complex as a hardship incurred.

Patrick McFadden: My hon. Friend makes a good point. I note that the hon. Member for East Devon is here; I am sure that he would enjoy some respite in the Unison-provided home there.
There is a serious point at the heart of the matter. No union will take lightly the responsibilities entailed by a decision to expel or exclude someone from membership; after all, unions are in the business of recruiting members. We are setting down rules in legislation on how that should be done. It should not be done in a way that would give anyone a host of objections that are not based on exceptional hardship and could tie up unions in vexatious or similar proceedings. The clause creates safeguards that concern the unions rule book, the persons capacity to make representations and the test for exceptional hardship. It is not an arbitrary power; safeguards will apply that have been discussed carefully in the other place and, by and large, recommended by the Joint Committee. The amendment would take us beyond those and call into question the practicability of the clause and the Bill.

John Baron: Although I accept that in the Ministers mind safeguards may apply, there is no disguising the fact that this is a draconian power. If we believe that the best of unionism aims for equality and fairness for all, a union can hardly defend the position that it excludes members purely on grounds of their political beliefs. That is not equality or fairness for all: it is an infringement of civil liberties that must be considered carefully. We are going down a slippery slope if we accept the principle of these measures. What might come around the corner? Perhaps the safeguards will be diluted. Putting those to one side, it is still an infringement of civil liberties that is difficult to defend. Were it not for the ECHR, would the Government be pushing this legislation? That is a straightforward question; will the Minister give a straightforward answer?

Patrick McFadden: The hon. Gentleman is basically saying that we should not be legislating on the matter. [Interruption.] We have decided to legislate because we believe it important for our law to be in line with the ECHR. [Interruption.]

John Bercow: Order. Ordinarily, the hon. Member for Billericay is the very embodiment of courtesy. I feel sure that he will return to his natural state of mind.

Hugo Swire: I sense that in his heart of hearts the Minister is slightly uncomfortable with the clause. I am sure that he is honest at all times, but if he could be more so now, I think that he would say that he is uneasy. Was the clause inserted at the instigation of the unions, or did it arise out of discussions with them? If so, was that some time before or after the Government gave the unions £10 million towards their modernisation programmes, or before the unions gave the Government £10 million back?

Patrick McFadden: As I have said four or five times, the clause is in the Bill because the Government believe that our domestic law should be compatible with the ECHR. We have heard this question from the Opposition a few times, so let me speculate that if they are ever in a position to decide such matters, they would depart from the convention. If they would not align our domestic law with it, they are welcome to say so, but the Government believe that we should legislate with that in mind.

Barry Gardiner: Does my hon. Friend agree that Conservative Back Benchers are somewhat trivialising the reason why the convention was brought into this in the first place? The European Court of Human Rights examining two competing rights and claims of liberty; indeed, that is why the matter had to go to the Court in the first place. After due consideration, it foundthe Joint Committee backed it upthat the right of freedom of association has priority over the right to join a union, which we would all accept should be a right in our society. Sometimes those rights conflict, so it is important to take seriously what the court determined in its prioritising of the two.

Patrick McFadden: My hon. Friend is right to refer us to the history of the matter. The judgment tried to balance competing rights because the right of association was also involvedthat is, the right of union members to decide with whom they associate. The Court ruled on a situation in which a member of the British National party held beliefs that were completely at variance with the dominant ethos of the union.
The power that we are setting out is not arbitrary, and there are important safeguards. I should like to quote the views expressed by Lord Morris of Handsworth who, I think we all accept, knows a thing or two about trade unionism and facing up to extremism:
Three key principles have been met: Britain will be able to comply with its statutory obligations, trade unions will have freedom and democratic rights in respect of their rule books, while the ability to discipline their members has been preserved, and members rights to natural justice will be safeguarded. On that basis...I wish the Bill well on its way.[Official Report, House of Lords, 2 June 2008; Vol. 702, c. 21.]
That was his verdict on the safeguards that we have built in.

Michael Jabez Foster: Of course, Lord Morris could have been wrong. Given the comments from Opposition Members, does my hon. Friend agree that, like Lord Morris, he would not want to spend time in a holiday home with a racist? Why are we looking at the provisions in terms of exceptional grounds? He keeps referring to the fact that the court judgment says that the test is one of exceptional hardship. Where in the judgment does that apply, because that was not the understanding of others?

Patrick McFadden: I read from paragraph 43 of the judgment.

Nick Palmer: I am grateful to the Minister for his eternal patience. Does he agree that the amendment is likely to be incompatible with the ECHR? Am I right that, as members of the European Union, we are collectively bound by that, and that if the Opposition were to press the amendment to a Division they would therefore, in effect, call into question the whole basis of our association with the European Union?

Patrick McFadden: That question may be raised, but my essential point is that the phrase exceptional hardship was carefully chosen. The test is consistent with
Mary Creaghrose

Patrick McFadden: I would like to wind up, but I shall give way to my hon. Friend.

Mary Creagh: I spent a happy 18 months on the Joint Committee and got my head fully around EU law and the convention. Perhaps I can illuminate the situation for my hon. Friend the Member for Broxtowe. The ECHR pre-dates the EU, and its set of signatories is much wider than that of the EUs member states. I am sure that Opposition Members would wish to question our membership of the EU in many other areas, but that would not be the case in respect of the convention.
John Hemmingrose

John Bercow: Order. Let me say for the benefit of the Committee that we cannot have an intervention on an intervention, so the Minister should make a brief response, if he wishes to, and then give way.

Patrick McFadden: Thank you, Mr. Bercow. I shall give way to the hon. Gentleman in a moment, but I think I have to respond briefly to the intervention by my hon. Friend the Member for Wakefield, who is correct to differentiate the two things and to enlighten us on her experience on the Joint Committee, which, as I said, considered the matter carefully.

John Hemming: Is it possible to speak after the Minister?

John Bercow: Yes.

John Hemming: In which case, I shall do so.

Patrick McFadden: I will therefore bring my remarks to a conclusion.
We must tread carefully in legislating on such serious matters. There are competing rights to do with joining a political party and freedom of association. We intend to legislate in a way that is compatible with the judgment of the Court and not to accept amendments that would render the clause completely unworkable. On that basis, I ask the hon. Member for Huntingdon to withdraw the amendment. If he presses it to a vote, I ask my hon. Friends to oppose it.

John Hemming: The ECHR is connected with the Council of Europe. As the hon. Member for Wakefield said, it has been in existence for much longer than the EU and has nothing do with it. Nevertheless, we have agreed to work within it, and that is the correct position. The Government made the right decision in 1998 to legislate to enable people to use the convention in domestic courts rather than in the European Court alone.
We have had a debate about the judgments use of the phrase exceptional hardship. That could include non-pecuniary hardship and therefore be broader than material financial disadvantage. To some extent, we may be debating how many angels are on the head of a pin. However, Liberal Democrat Members believe that the phrase in the judgment is what we should include in the legislation, even though there is great difficulty in defining which phrase is narrower and which is broader. Speaking personally, I am happy with the provision. It is not reasonable, for instance, to expect somebody who happens to be of mixed race to associate with somebody who believes that they should not exist. The BNPs official party policy is that mixed-race people should not exist, so it is entirely reasonable for somebody to be able to say, I do not want anything to do with those people. We are creating a situation where only the membership of the union is at stake, not any exceptional hardship. I do not think that there is a big difference between the phrases, exceptional hardship and material financial disadvantage. In some areas, one of those is broader; in other areas, it is the other one. Nevertheless, if exceptional hardship is the phrase in the judgment, that is what we should go with.

Nick Palmer: I do not want to delay the Committee unnecessarily, but I would like to clarify the point about the convention. My understanding is that it was established well before the EU, as my hon. Friend the Member for Wakefield said. We are signatories to it, and, as a result, we as individuals have always been allowed to go to the Court in Strasbourg. However, even were that not the case, the EU is signed up collectively to the convention, so it would not be not possible to follow the suggestion of the hon. Member for Billericay by ignoring a judgment of the European Court of Human Rights because we do not agree with it without calling into question our membership of the EU.

Jonathan Djanogly: I agree with the Minister that the question is not whether we legislate, but how we legislate. We have signed up to the European convention on human rights and, as far as I am aware, this country has never failed to follow the rulings of the European Court of Human Rights, whichever party has been in power. I will not use todays sitting to debate whether that should be questionedthat is an argument for another day.
My hon. Friends have raised legitimate concerns about the nature of this provision and its intrinsic unfairness, and I agree with nearly everything that has been said. Unfortunately, we are discussing maximising the protections given to the Courts judgment. The Minister referred to a list of eminent people who took one view or another. We do not feel that the right balance has been struck. The issues involved are more fundamental than whether we want to share retirement homes with racists or people with other nasty views.

Mary Creagh: Is not this debate about the ability of BNP activists or other extreme groups to undo the vital work that trade unions do in getting out an anti-racism message by working covertly or overtly in a union to recruit members for their own purposes?

Jonathan Djanogly: I do not think that it is about that in the slightest. We cannot defend liberties by destroying them. We are trying to strike a balance between the interests of trade union powers and those of the individual. That is the crux of todays debate. As the hon. Member for Birmingham, Yardley said, how fair that balance is depends on our political leanings and our beliefs. This process has already led to a complicated clause of powers and protections. As the old saying goes, you cannot make a silk purse out of a sows ear, but anyone who has read the nitty-gritty of the clause will appreciate that it has a go at doing so.
As matters stand, we are not confident that enough consideration has been given to the possibility of material hardship being taken into consideration. On that basis, I should like to divide the Committee.

Question put, That the amendment be made:

The Committee divided: Ayes 5, Noes 11.

Question accordingly negatived.
Further consideration adjourned.[Claire Ward.]

Adjourned accordingly at twenty minutes past Ten oclock till this day at One oclock.